Denver Worker's Compensation Info

Monday, February 9, 2015

Workers' Comp Info - Failure to Provide List of Two Doctors

Failure to Provide List of Two Doctors:

Under § 8-43-404(5)(a), C.R.S., the employer or insurer is afforded the right in the

first instance to select a physician to treat the injury. The statute requires the employer or

insurer to “provide a list of at least two physicians, … in the first instance, from which list an

injured employee may select the physician who attends said injured employee.” Similarly,

Workers’ Compensation Rules of Procedure, Rule 8-2(A), 7 Code Colo. Reg. 11-01-3, states

that “[w]hen an employer has notice of an on the job injury, the employer or insurer shall

provide the injured worker with a written list . . ..” In order to maintain the right to designate

a provider in the first instance, the employer has an obligation to name the treating physician

forthwith upon receiving notice of the compensable injury. See Rogers v. Industrial Claim

Appeals Office, 746 P.2d 545 (Colo. App. 1987). The failure to tender the “services of a

physician … at the time of injury” gives the employee “the right to select a physician or

chiropractor.” The employer’s duty to designate is triggered once the employer or insurer

has some knowledge of facts that would lead a reasonably conscientious manager to belief

the case may involve a claim for compensation. Bunch v. Industrial Claim Appeals Office,

148 P.3d 381 (Colo. App. 2006); Jones v. Adolph Coors Co., 689 P.2d 681 (Colo. App.

Original Source: From the archives of The Law Office of O'Toole & Sbarbaro, P.C.

Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.

http://www.otoole-sbarbaro.com

Phone: 303-595-4777

We are located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Any content of this blog is intended for informational purposes only.It is not intended to solicit business, provide legal advice from The Law Office of O'Toole & Sbarbaro, P.C. and does not serve as a medium for an attorney-client relationship. Therefore, The Law Office of O'Toole & Sbarbaro, P.C. is not responsible for the information on this blog which may not apply to every reader. Always seek professional counsel if you have any legal matters. Contents within the blog of The Law Office of O'Toole & Sbarbaro, P.C., logos and other related media are protected by the copyright laws of the United States and other jurisdictions.

Friday, January 16, 2015

The Binder & Binder bankruptcy

Binder & Binder, a nation-wide firm of advocates for those seeking Social Security disability or Supplemental Security Income benefits, is roughly $40 million in debt and is preparing declare bankruptcy under Chapter 11, according to the Wall Street Journal.

For those of us who represent clients before the Social Security Administration, this is quite a milestone.

Three years of sharply lower allowance rates have taken their toll. Additionally, backlogs at the hearing offices have increased significantly over the past year, so fewer cases are getting scheduled for hearings. Fewer hearings and lower allowance rates is a nasty combination. Add high overhead and high advertising costs, and you have a recipe for bankruptcy. Here is attorney Charles Hall's take on the Binder situation.

I won't miss Binder. I have heard too many stories from its former clients about the level of representation received. In my opinion, disability claimants are better served by local attorneys who develop a relationship with their clients, have a working relationship with the administrative law judges in their area, and work frequently with the staff at local Social Security offices.

Nevertheless, Binder's apparent collapse is the latest evidence the grim new reality in the world of representing clients before the Social Security Administration. It is a tough time to be representing those claiming Social Security disability benefits. All of us have had to make adjustments in our practice.

For those of you applying for disability benefits, you cannot simply trust the system to do the right thing anymore. Good representation is more important than ever.

12/19/2014 Update: The bankruptcy has been filed. During its Chapter 11 reorganization, Binder projects it will reduce its staff by 60% or so over the next 2 years.

1/02/2015 Update: More Binder & Binder updates, courtesy of Charles Hall. Apparently Binder has stopped ordering medical records for its clients, which if true, is outrageous. And not surprisingly, a lot ofBinder employees will be losing their jobs.

Original Source

Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.

http://www.otoole-sbarbaro.com

Phone: 303-595-4777

We are located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Sunday, January 4, 2015

Workers comp premiums will increase if Congress fails to renew TRIA in 2015

If the federal terrorism reinsurance backstop program isn't reauthorized during the first quarter of 2015, employers renewing their workers compensation coverage could be forced to the residual markets and face significant premium increases.

Established by the Terrorism Risk Insurance Act in 2002 following the Sept. 11, 2001, U.S. terrorist attacks, the program expired Dec. 31 due to objections in the Senate, surprising and dismaying insurers and buyers.

While many industry experts expect TRIA will be reauthorized by the new Congress that convenes Jan. 6, workers comp insurers and reinsurers are keeping quiet as they evaluate what risks they would underwrite without the backstop safety net, experts said.

“The market is still operating under the presumption that TRIA is going to be reauthorized in January,” said Robert Hartwig, president of the New York-based Insurance Information Institute. “If we get to the middle of February and there's still no reauthorization, that becomes a game changer.”

Though uncommon, some insurers are including language in workers comp policies that would allow them to rescind coverage for companies that have large concentrations of workers in “high-risk, Tier 1 cities” such as New York and San Francisco if TRIA isn't extended, Mr. Hartwig said.

Workers comp pricing also will spike in such areas, but “it will be muted initially,” he said.

It seems insurers are prepared to honor workers comp policies with effective dates through March, said Tim DeSett, executive vice president of risk practices at Lockton Cos. L.L.C. in Kansas City, Missouri.

Some insurers “have their own filed endorsements, which they used to say, "This is how much premium we are charging for terrorism risk,' “ said Pam Ferrandino, executive vice president and casualty practice leader at Willis North America Inc. in New York.

Such endorsements allow insurers to adjust their pricing down the road, she said.

Since terrorism coverage can't be excluded from workers comp policies in any state, insurers will look to limit any potential losses, sources said.

“I've heard from some carriers that they're trying ... to issue a nonrenewal notice for the entire account only so they can carve out the states where they have concentration,” Ms. Ferrandino said. In other words, they'd cancel a company's nationwide account and “issue a renewal term on an all-other-states basis.”

If TRIA hasn't been reauthorized by February, sources said some employers could have trouble renewing or purchasing traditional workers comp coverage and be forced into residual markets, known as the insurers of last resort.

The cost of residual market coverage could be “considerably higher,” according to a 2014 Rand Corp. report, which said 32 states and the District of Columbia have assigned risk pools, and 14 states direct all residual market business to competitive state funds.

While the Rand report said a nationwide estimate of residual market costs was not available, it did note that the Illinois Workers' Compensation Commission advised employers that premiums are 45% more in the residual market than the traditional market.

In addition, state workers comp funds could see their market share increase “significantly” as employers are denied coverage in the standard market, said Bruce Wood, Washington-based vice president and associate general counsel at the American Insurance Association.

“So if companies are forced into higher markets or residual markets, then laying off people becomes an option they would have to face,” said Carolyn Snow, Louisville, Kentucky-based director of risk management at Humana Inc.

TRIA's expiration didn't affect workers comp rates for Kelly Services Inc., which renewed its workers comp coverage with Ace Ltd. effective Jan. 1, said Gary Pearce, vice president of risk management group at the Troy, Michigan-based temporary staffing firm.

Mr. Pearce said Kelly Services is a more desirable risk since workers aren't concentrated in one high-risk area, but also said the company would be hit if TRIA is not reauthorized.

“Our employees are the first ones to be laid off,” Mr. Pearce said. “So to the extent that there's a deficient insurance backstop, that could hurt employment.”

Insurers also could be adversely affected, Mr. Wood said.

Workers comp insurers that leave the voluntary market to avoid terrorism losses still could be assigned to cover such risks in the residual markets for various states, he said.

“In that sense, there is nowhere to run and nowhere to hide,” Mr. Wood said.

Self-insured employers have unique concerns, since excess workers comp insurers can exclude terrorism risks from their policies, except in New York and Florida, Ms. Ferrandino said.

“To the extent that TRIA expiration reduces insurers' willingness to provide these alternatives to traditional (workers comp) coverage, self-insurance may become more difficult,” according to the Rand report.

Ms. Snow said Humana, which funds its comp coverage through its captive insurer, had not yet heard from its excess insurers following TRIA's expiration.

“The markets have just been really quiet,” Ms. Snow said. “I suspect it's because they expect action in the first quarter, but it's kind of been surprising how quiet (insurers and reinsurers) have been. ... Everything at this point is speculation.”

Original Source

Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.

http://www.otoole-sbarbaro.com

Phone: 303-595-4777

We are located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Thursday, January 1, 2015

Happy New Year from The Law Office of O'Toole & Sbarbaro, P.C.

Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.

http://www.otoole-sbarbaro.com

Phone: 303-595-4777

We are located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Friday, December 26, 2014

How Santa Can Improve Safety And Prevent Injuries

When we talk to employers about safety, the most common question asked is “What can we do to create a culture of safety?”

This is quite a question, and there really is no direct answer that will work for each employer. Every employer brings their own set of circumstances, their own environments, their own staff issues, and so on. But the most common start can be with watching what their employees are doing each and every day. If you want safety, you cannot just talk about it. Sure it is great to talk the talk, but you have to walk the walk.

“He See’s You When You’re Sleeping, He Knows When You’re Awake, He Knows If You’ve Been Bad Or Good, So Be Good for Goodness Sake”

Santa would be a heck of a supervisor, he always has eyes on you. His approach on keeping kids in line would be a helpful training for all the supervisors out there looking to improve safety.

Just like Santa, the first step starts with the supervisors watching their staff. When an incorrect action or unsafe act is observed, it should be seen as an opportunity to prevent and correct that behavior from happening again before an injury happens. Supervisors cannot be everywhere at once, but their constant involvement is what will lay the path of correction.

A useful tool is the Employee Safety Observation sheet. Each supervisor should be spending time throughout the week watching their staff, and if a safety infraction occurs they should be immediately pulled aside and the employee safety observation form should be completed, signed off on, and corrective action implemented. Whether or not you discipline is up to you, but disciplinary measures are always helpful to reinforce the fact that the old way of doing things is long gone. The sooner you implement corrective action, the closer you are to creating an atmosphere and culture of safety at your plant.

Document & Report The Naughty or Nice List

I have attached a sample form below, and this can be modified or changed to fit any department, any job, and any measure. Be creative, and stick to your guns on these issues. Remember it has to be drilled home that the old way of cutting corners is a thing of the past. The sooner your workers realize this, the safer your plant can become.

WHERE UNSAFE BEHAVIOR WAS OBSERVED ADDRESS THE FOLLOWING:

Reason employee gave for unsafe behavior:

__________________________________________________________________________________________________________________________________________________________________________________________________________________________

Constructive corrections:

Follow-up (if necessary):

Where no unsafe behavior was observed provide the following positive reinforcement/recommendations:

Original Source

Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.

http://www.otoole-sbarbaro.com

Phone: 303-595-4777

We are located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Thursday, December 25, 2014

Merry Christmas & happy Holidays from The Law Office of O'Toole & Sbarbaro, P.C.

Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.

http://www.otoole-sbarbaro.com

Phone: 303-595-4777

We are located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Monday, December 22, 2014

Obesity Could Be a Disability, EU Court Says Obesity Could Be a Disability, EU Court Says

Billund, DK (WorkersCompensation.com) - Karsten Kaltoft of Billund, Denmark, spent 15 years working as a daycare provider for the city. But in 2010, the city yanked his employment contract and fired him.

The city of Billund claimed to base his dismissal on a dwindling number of children needing care, but did not specify why it chose Kaltoft for the chopping block. What was discussed during his exit interview, however, was the fact that Kaltoft is - and had been throughout his 15-year employment with the city - obese.

Although the city denied Kaltoft's obesity was a motivating factor in his dismissal, the man's union sued for employment discrimination. The Danish court hearing the case asked the European Court of Justice whether EU law prohibits obesity discrimination at all, and whether obesity can be considered a disability for employment-law purposes.

In an opinion issued Tuesday, the EU high court held that obese persons are not - in and of themselves - a protected class of people under either Europe's employment laws or in its constitution. But the condition may be a disability that must be accommodated like any other limitation, the court said.

"That concept of 'disability' must be understood as referring not only to the impossibility of exercising a professional activity, but also to a hindrance to the exercise of such an activity," the Luxembourg-based court wrote. "Any other interpretation would be incompatible with the objective of EU law, which aims in particular to enable a person with a disability to have access to or participate in employment."

The court added: "The concept of 'disability' does not depend on the extent to which the person may or may not have contributed to the onset of his disability."

Like any disabled worker, employers must make accommodations so that employees can work - and advance - like anyone else. The fact that the city of Billund may not have accommodated Kaltoft does not mean he can't be considered disabled under the law, the court said.

The Danish court must decided whether Kaltoft meets the EU's legal definition of disabled, which "must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers," the court concluded.

Interestingly, the city of Billund gave Kaltoft - as part of its health initiative - financial incentives to lose weight in 2008. He lost weight but gained it back by the following year, according to the opinion.

Original Source

Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.

http://www.otoole-sbarbaro.com

Phone: 303-595-4777

We are located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Monday, December 8, 2014

The Law Office of O’Toole & Sbarbaro, P.C. remembers Dave Conner.

The Law Office of O’Toole & Sbarbaro, P.C. is saddened by the passing of Dave Conner. Dave Conner was a supervisor, mentor and good friend to John Sbarbaro during his tenure at the United States Attorney’s Office. His full obituary appeared in the Friday, December 5, 2014, Denver Post and can be found here: Longtime prosecutor, Denverite Dave Conner dies of cancer - The Denver Post

Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.

http://www.otoole-sbarbaro.com

Phone: 303-595-4777

We are located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

Disclaimer

Wednesday, December 3, 2014

What percentage of earnings should be replaced by temporary disability benefits?

Workers’ compensation levels for temporary disability are of critical importance to workers and their families. Any discussions I’ve read recently are around “benefit adequacy” of temporary disability benefits. This is, of course, critically important but misses some important points.

Workers’ suffer from work-related injuries. No one can share the physical and psychological pain. Workers’ compensation is intended to offset the financial impact in terms of lost wages. In addition to the pain and suffering of the work-related injury, workers must also bear the earnings lost that are not compensated by workers’ compensation temporary disability payments. As with uncompensated waiting periods and earnings above the maximum insurable, workers are self-insured for the difference between what they lose in wages and what they get in compensation.

The obvious benefit adequacy argument characterizes the loss as a worker deductible. It also shifts the cost of work-related injury from employer to worker. The lower the cost to the employer, the less the incentive to invest in worker safety and return-to-work initiatives. Workers’ compensation costs are part of the prevention feedback mechanism. The historic trade-off that made workers’ compensation the exclusive remedy envisioned that costs of workplace injury would not unduly shift costs as well as the burden of injury upon the worker.

How much of the worker’s loss should be compensated? The National Commission on State Workmen’s Compensation Laws (July 1972) said the following:

We recommend that cash benefits for temporary total disability be at least two-thirds of the worker's gross weekly wage. The two-thirds formulation should be used only on a transitional basis until the State adopts a provision making payments at least 80 percent of the worker's spendable weekly earnings. (See R3.6 and R3.7) [Emphasis added]

Here we are more than four decades after Professor Burton’s authoritative and comprehensive report and the fact is only 10 US state have made progress toward meeting this recommendation. By contrast, all Canadian jurisdictions could be assessed as having met the recommendation with the majority exceeding the “at least 80% of net” standard set out in the report’s recommendation. [see accompanying table]

Beyond the benefit-adequacy argument, the financial costs of work-related injury being borne by workers are real and measurable cost. Workers and their families bear other costs and there can be debates about what estimates of those ought to include. Temporary Disability losses are easily quantifiable into the portion covered by workers’ compensation insurance and the portion self-insured by the workers themselves.

If the work at least 80% of that loss. Clearly a handful of US states and most Canadian jurisdictions have found ways to meet this standard. Doing so may be fundamental to preserving workers’ compensation as the essential social insurance program it has become in the world today.

Original Source

Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.

http://www.otoole-sbarbaro.com

Phone: 303-595-4777

We are located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

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